The Kunstmuseum Bern’s Agreement to Accept Gurlitt Inheritance—Analysis and Lingering Issues

Art Law Report 24 November 2014
By Nicholas O'Donnell

With the benefit of (a little) time after the initial announcement that the Kunstmuseum Bern had agreed to accept the inheritance of Cornelius Gurlitt, more information has become available about the agreement with Germany and Bavaria that paved the way for the museum’s decision. 

It practical terms, the agreement resolves nothing definitively.  The inheritance itself still hinges on the validity of the will itself.  And there is still very little information about what is even under suspicion.  Reports swirled later in the day that there may finally be a release of both Hildebrand Gurlitt’s records, and the full accounting of what is under suspicion.  That would be progress, regardless of who ultimately takes possession of the collection subject to the claims.

First and foremost, the agreement itself was immediately made available.  It is written in German (copy here), but the main themes are as follows:

·         The preamble devotes considerable energy to committing the museum to the Washington Principles.  While that itself may be more problematic than it appears, it theoretically commits the museum to those principles that would not otherwise apply to such a private foundation.

·         The museum will accept the bequest of all of the art that is not suspected of having been looted by the Nazis.  That will apply both to the 1,280 or so objects that were seized from Gurlitt’s apartment, as well as the works found in Salzburg, and the Monet that was in his briefcase when he died, among others.

·         The parties commit to the continued provenance research dictated by the Bavaria-Gurlitt agreement earlier this year, at no cost to the museum.

·         The Task Force will apply its research to the other works in Gurlitt’s possession (i.e., the Salzburg group of works), and any others that surface.

·         Works that are deemed “Nazi looted” by the Task Force will be governed by Germany’s 1999 declaration of adherence to the Washington Principles (the Erklärung der Bundesregierung, der Länder und der kommunalen Spitzenverbände zur Auffindung und zur Rückgabe NS-verfolgungsbedingt entzogenen Kulturgutes, insbesondere aus jüdischem Besitz).

·         The burden of proof on the Task Force is “proven or with a high likelihood.”  If the Task Force determines with that level of certainty that a work is not looted, it will go to the museum.  If the Task Force determines with that level of certainty that a work is looted and there is a substantiated claim to it, it will stay in the location where the art has been kept for restitution procedures.  Lastly, if the Task Force determines with that level of certainty that a work is looted but there is no substantiated claim to it, it will be exhibited in Germany. 

·         Lastly, there is a catchall paragraph for circumstance where the provenance is unclear, the museum can decide on a case by case basis.

·         Germany and Bavaria commit to see to restitution of those works that qualify, and to “avoid” lawsuits against the museum, but to indemnify the museum if it does happen. 

“Degenerate Art” gets its own section (paragraph 8), and will be treated differently depending on whether it is also looted.  This is really just another way of saying that looted art is subject to the foregoing, and non-looted art will go to the museum.  The museum intends to create a research center at its own expense.

Again, this is considerable progress insofar as the agreement’s terms are known.  The Gurlitt-Bavaria agreement has still never been released, but today’s event was also interesting because it included the release of an executive summary of it (in both German and English) as it relates to this agreement.  But the distinction for substantiated claims sounds easier than it probably is; until more information is released, only a few people even know that they are claimants.  That needs to change. 

So where does that leave everything?  Many have voiced support for the deal.  Less sanguine were attorneys for David Toren, who is still facing opposition from Germany to his restitution claim.  They expressed cautious optimism that it might break the logjam that has stymied Toren’s claim.  

Also, the press conference itself was quite interesting to watch (YouTube video here).  Museum chairman Christoph Schäublin gave an overview about how surprised the museum was when it received the news.  He conveyed a sense of deliberations over the decision, and concern about the larger implications.  German Minister of Culture Monika Grütters spoke briefly as well.

Viewed from afar, the agreement is all upside for the museum.  It gets some measure of world class works, diclaims any interest in looted art, and is protected by Germany in the event there is a dispute. 

But it is not the beginning of the end of this story.  It may not even be the end of the beginning.
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